Miller v Waverley Council - [2010] NSWLEC 1309

Land and Environment Court

of New South Wales

CITATION: Miller v Waverley Council [2010] NSWLEC 1309

PARTIES:
APPLICANT
Neill Miller
RESPONDENT
Waverley Council

FILE NUMBER(S): 10401 of 2010

CORAM: Brown C

KEY ISSUES: DEVELOPMENT APPLICATION :- demolition of an existing residential flat building and erection of a new residential flat building - non-compliance with planning controls - inappropriate design - heritage impacts - visual impact - demolition, excavation and construction impacts - noise - vibration - construction vehicle movements

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996
Waverley Development Control Plan 2006
State Environmental Planning Policy No. 65
State Environmental Planning Policy No.71

DATES OF HEARING: 5, 6, 7 October 2010

DATE OF JUDGMENT:
12 November 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr J Robson SC
SOLICITORS
Morgan Lewis Solicitors
RESPONDENT
Mr S Brockwell, barrister
SOLICITORS
Sparke Helmore Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

12 November 2010

10401 of 2010 Neill Miller v Waverley Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Waverley Council (the council) of Development Application DA008/2009 for the demolition of an existing residential flat building and erection of a new residential flat building at 105 Ramsgate Avenue Bondi Beach (the site)

2 The contentions raised by the council can be grouped into the following main areas:

3 The council’s contention that owners consent had not been obtained for the use of rock bolts that extend beyond the side boundaries under adjoining properties (Contention 6(a)) was not pressed as the applicant maintains that this form of construction was not proposed. If, after further investigation rock bolts are required, the applicant accepts that the consent of the affected owners would be required. The council’s contention relating to unacceptable risk of future storm surges (Contentions 7) was not pressed by the council following further discussion and agreement between Mr Peter Horton, for the applicant and Ms Emily Scott, for the council (Exhibit 5).

4 Additional resident evidence (Contentions 8) was taken on-site from representatives of adjoining residential flat buildings, experts on behalf of some property owners, community groups and the Waverley Combined Precinct Committee. In addition to those matters raised by the council, the following additional issues were raised:

impacts on aboriginal heritage and artworks,
dust
privacy impacts and
view loss.

The site

5 The site comprises 10 lots within Strata Plan 1159 approved on 18 December 1964 although the building was likely constructed around 80 years ago. The site area is 385.7 sq m including a 27 m access handle to the southern boundary on Ramsgate Avenue, a frontage of 29 m on the northern boundary, a length of 12.19 m on the western boundary and a length of 58 m on the southern boundary.

6 The site forms part of a group of residential flat buildings (93, 97, 99, 101, 107 and 109 Ramsgate Avenue) on the Ben Buckler headland located between Ramsgate Avenue and the northern end of Bondi Beach. These properties all gain access from Ramsgate Avenue and have the benefit of access handles, Rights of Way or direct access to Ramsgate Avenue. Those properties with direct access to Ramsgate Avenue have the benefit of reciprocal Rights of Way to provide access to vehicular parking (93, 99, 101 and 109 Ramsgate Avenue). Helpfully, a document was provided to show the extent of the property boundaries and the Rights of Way for each property (Exhibit K). The title documentation was provided although the appeal proceeded on the basis that the terms of the Rights of Way provided that users “not unreasonably interfere with the ability to pass and repass". Some parts of the Rights of Way and some private property are currently used for informal but marked car parking spaces. The relationship between the properties is shown below:

7 The existing part five-storey residential flat building on the site contains 10 units, the majority being single bedroom units. It directly adjoins the rock shelf known as Mermaid Rocks on the ocean shore at North Bondi. The ocean side facade of the building faces west looking directly across to Bondi Beach.

8 The predominant form of development within the area is residential flat buildings 3 to 5 storeys generally constructed in the late 1920s and 1930s. Some two-storey dwelling houses are located on the eastern side of Ramsgate Avenue.

The proposal

9 The proposed development provides for the demolition of most the existing residential flat building and erection of a new residential flat building within the same building envelope as the existing building but with the addition of balconies to the elevation facing Bondi Beach. The new building will contain three apartments with associated facilities, basement car parking for four vehicles with a car lift over three levels, a plunge pool, landscaping and site works. The application proposes the retention of the existing boathouse.

10 The site is within Zone No 2(c1) Residential – Medium and High Density under Waverley Local Environmental Plan 1996 (LEP 1996). The proposed development is a permissible use within this zone. Clause 10(2) provides that consent must not be granted unless the council is satisfied that the development meets one more of the objectives of the zone. The relevant objectives are:

a) to allow for a variety of medium and high-density housing forms, including boarding houses, dwelling houses, residential flat buildings and townhouses;

(b) to maintain and improve the amenity of the locality; and

11 Clause 21 provides that consent must not be granted if the proposed development will likely be affected by future climate changes or global warming unless consideration has been given to whether conditions should be imposed to address these matters. This clause was not pressed by the council.

12 Clause 30(a) provides that if an application is made for consent to carry out development within view of Bondi Beach or the South Pacific Ocean, an assessment must be made of the probable aesthetic appearance of the proposed development.

13 Part 4 provides Heritage Provisions. The building is not listed as a heritage item in LEP 1996 but the site (and the adjoining property at 107 Ramsgate Avenue) is identified on the Composite Heritage Map as being located within a Heritage Conservation Area - Urban. Clause 45 provides requirements for the protection of heritage conservation areas.

14 Waverley Development Control Plan 2006 (Amendment No. 4) (DCP 2006) applies and provides guidelines and controls for multi-unit housing development.

15 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (cl 30(2)(c)).

16 State Environmental Planning Policy No.71 – Coastal Protection (SEPP 71) applies to the proposed development. Clause 7(b) requires those matters set out in cl 8 to be considered in determining a development application on land to which the policy applies.

The expert evidence

17 The applicant provided expert evidence from Mr Graham Brooks, a heritage architect, on the heritage issues, Mr Tony Moody, a town planner, on the appropriateness of the provision of four car park spaces, the appropriateness of the design and the public interest, Mr Rohan Dickson, an architect and urban designer, on the building design and the public interest, Mr Jan Luikens on building construction issues, Mr John Coady on traffic and construction traffic issues, Dr Philip Pells on the geology of the area and the ability to excavate the basement area and Mr Stephen Cooper on acoustical issues.

18 The council provided expert evidence from Mr Tim Ash on building construction issues and Mr Kerry Nash, a town planner, on heritage, building design, urban design and the public interest issues.

The building design
The evidence - heritage impact

19 Clause 45(3) of LEP 1996 requires that consideration must be given to "the extent to which the carrying out of the proposed development would affect to the heritage significance of the…. heritage conservation area".

20 It was agreed that the conservation area identifies the area's cultural significance as being the people on the beach, not the buildings. The dense line of buildings on the headland, including the site, provides a compact visual backdrop to the beach. It was agreed that the curtilage includes the rock shelf that adjoins the western boundary of the site.

21 It is also agreed that the subject building and its immediate neighbours are not included in the land covered by either the NSW State Heritage listed area or the National Heritage listed area, both of which concentrate on Bondi Beach and regard the buildings on the headland as a dense urban backdrop to the beach.

22 Mr Nash acknowledged his lack of qualifications in assessing heritage impacts but maintains that the proposed development will have an adverse impact on the contribution the existing building makes to the group of buildings on the northern headland, which encloses the beach. While the application relies on the fact that the new building is within the building envelope of the existing building, Mr Nash notes that it actually reflects the building envelope of the refurbished building approved by the council on 27 November 2007. The refurbishments incorporate a balcony structure, 2.5 m wide on the waterfront facade, including the extension of the roof form over the uppermost balcony. In the opinion of Mr Nash, the increase in the bulk of the building on its western facade, increased roof form and enclosure of the terrace area on the lower ground level will result in a negative visual impact. He suggests amendments to reduce this visual impact that provide for increased setbacks for the building and balconies from the seaward elevation by some 1.5 m and increased side setbacks of around 750 mm. Mr Nash also advocates:

the deletion of the car parking stacker system (and thus the need for any excavation),
the removal of the roof form over the upper balcony,
the removal of the enclosed structures on the lower ground floor terrace, and
measures to addressed the direct window to window privacy and overlooking impacts.

23 In his opinion, if the demolition of the existing building proceeds, any replacement building should not emulate building standards from the time the original building was constructed but should seek to improve access to natural light and ventilation, maintain the existing roof form without the balcony extension, incorporate a balcony zone within the existing building footprint and maintain the open character of the lower ground floor terrace area.

24 Mr Brookes comes to the opposite conclusion. He states that the group of three buildings in which the subject building is located could not be described as iconic, especially when compared to the iconic status of Bondi Beach. The highly compact group of buildings on the head land, particularly 8 of the 9 blocks of flats that predate 1943, form an important visual backdrop to Bondi Beach, but could not be described as iconic in their own right. The inclusion of the approved balconies, within the bulk of the current proposal, will have a marginal impact on the overall composition and will have no adverse impact on the contribution that the two incorporated buildings, in the backdrop role of the group of six interwar buildings as a whole, make to the Bondi Beach backdrop. A reduction in the bulk and scale of the replacement building, as proposed by Mr Nash, will have a corrosive effect on the visual density of the group of traditional buildings on the headland and set a dangerous precedent for the continuing weakening of this important visual backdrop.

25 Mr Brooks maintains that there are no adverse impacts on the heritage conservation area arising from the proposed demolition of the building, and that there are no unacceptable or adverse impacts on the heritage significance of the conservation area arising from the proposed replacement building.

Findings- heritage impact

26 On this matter, I agree with the evidence of Mr Brooks. I also note that Mr Colin Brady, the council’s heritage architect and urban planner also finds the proposed building acceptable in heritage terms. It is not clear why the site and the adjoining property at 107 Ramsgate Avenue are included within the heritage conservation area however the undisputed evidence was that the focus of the heritage conservation area was on the cultural significance of the beach, not the buildings surrounding the beach. These buildings have formed a backdrop to the beach for a significant time and are an intrinsic part of its character. The proposal, by maintaining largely the same form as the existing building, maintains this relationship while providing contemporary accommodation. For this reason, the amendments suggested by Mr Nash should be rejected.

27 I also do not accept the concerns of Mr Nash over the provision of balconies on the seaward elevation. In my view, his concerns are overstated. The building is not an identified heritage item and I have little trouble in accepting Mr Brooks evidence that the proposed balconies have no impact on the urban form creating the backdrop to Bondi Beach. Clearly, the council came to a similar conclusion when the balconies were approved in 2007.

28 Pursuant to cl 45(3) of LEP 1996 I am satisfied that the proposed development will have no impact on the heritage significance of the heritage conservation area.

The evidence – impact from Bondi Beach/ Pacific Ocean

29 Clause 30(a) provides that if an application is made to carry out development "within view of…. Bondi Beach… or the Pacific Ocean", an assessment must be made of the probable aesthetic appearance of any building or work that will result from the proposed development.

30 The experts agree that in considering the appropriateness of the design, the heritage assessment is an important consideration. The evidence provided by Mr Nash was similar to that provided on the contention relating to effect on the heritage conservation area. Overall, his evidence indicated that the impact from Bondi Beach or the Pacific Ocean was unacceptable.

31 The evidence Mr Brooks is set out in the preceding paragraphs where he finds no impact on the heritage significance of the conservation area. Mr Dickson addresses the appropriateness of the design and its relationship with the existing character of the area through SEPP 65. These support the council's assessment in terms of context (Principle 1) where the relationship is described as "essentially the same as the existing building with the approved DA". Mr Dickson states that the proposal seeks to retain the siting, building envelope, and therefore retain the existing relationship it has with the adjoining buildings within this cluster. By building within the footprint of the existing development, existing sight lines from Ramsgate Avenue to the ocean will be protected. He rejects the modification as suggested by Mr Nash as unreasonable, particularly given that the proposed modifications will improve the amenity relationship between buildings that currently exist.

32 Further, the character of the area in terms of building typology will be maintained, through the proposed box-like building form that replicates the existing building form. The existing roof pitch and design will also be retained, so the same bulk and scale of the existing building will be replicated and be consistent with the existing building and the approval granted by council in November 2007.

Findings – impact from Bondi Beach/ Pacific Ocean

33 I agree with the experts that in considering the appropriateness of the design, the heritage assessment is an important consideration. Having found that there is no impact on the heritage significance of the conservation area, there is no reason why similar conclusion could not be reached for the test required by cl 30(a).

34 The evidence of Mr Dickson is supported by Mr Moody and Mr Brooks, and, in my view, is sound and a sensible approach to a site that pre-dates the existing planning controls and has heritage implications. I see no reason to depart from their conclusions, so pursuant to cl 30(a)of LEP 1996, I am satisfied that the aesthetic appearance of the development is acceptable when viewed from Bondi Beach and the Pacific Ocean. Similarly, there are no matters within cl 8 of SEPP 71, particularly cl 8(d), (e) or (f) that would warrant the refusal of the development application.

The evidence - non-compliance with council DCP 2006 controls

35 The contention identified breaches of the minimum requirements in DCP 2006 for site frontage, the maximum building height, the maximum floor space ratio (FSR) and landscaping requirements.

36 Mr Nash does not press the departure from the minimum building height requirement but maintains that the other departures are not acceptable and that his suggested amendments should be included to provide greater compliance with DCP 2006 controls, better internal amenity and protect the amenity of adjoining residential flat buildings.

37 The evidence of Mr Dickson, Mr Moody and Mr Brooks supports the proposed development notwithstanding the non-compliance some controls in DCP 2006 for the reasons mentioned in preceding paragraphs.

Findings - non-compliance with council DCP 2006 controls

38 Of the planning controls identified in the council's contentions, I accept that the minimum site frontage requirement could only be regarded as a theoretical non-compliance and could not be considered a serious contention, given the existence of a residential flat building on the site and its context amongst the residential flat buildings.

39 The non-compliance with building height, FSR and landscaping requirements also need to be considered in the context of the existing development on the site and the form and scale of surrounding development. It is unclear why the non-compliances with the DCP 2006 controls were raised as contentions in the appeal as I did not understand Mr Nash to require strict compliance with the requirements but he did suggest some minor amendments to the design.

40 While the DCP 2006 controls are relevant matters for consideration, these controls must be considered in the context of the existing character of the area and also the inclusion of the site within a heritage conservation area. In my understanding of the expert evidence from both parties, there was agreement that the form of any new building should generally replicate the same form as existing building so that the consistent visual appearance to the backdrop to Bondi Beach is maintained. Compliance, or even greater compliance with the FSR and landscape area requirements would likely create a building that would be inconsistent with this objective of maintaining the existing backdrop to Bondi Beach and the Pacific Ocean. In this case, the sensible approach (and the vast majority of expert evidence) provides that preference be given to maintaining the existing visual character of the area over compliance, or greater compliance, with the identified planning controls in DCP 2006.

41 For these reasons, compliance, or even greater compliance, with the identified planning controls in DCP 2006 is unreasonable and unnecessary in this case. Similarly, there is no conflict with any of the design quality principles in Pt 2 of SEPP 65 that would warrant the refusal or amendment of the development application.

Excavation and demolition

42 The contentions raised by the council focused on the impacts of the excavation and demolition and the movement of the material from the site. Mr Brockwell, for the council, submitted that while there were impacts associated with the construction of the proposed new residential flat building, these impacts were not determinative.

43 A Construction Traffic Management Plan (CTPM) has been prepared by Mr Coady to supplement the Enhanced Construction Management Plan (ECMP). The CTPM provides detailed information on construction traffic activity associated with the proposed development and should be read in conjunction with the ECMP.

44 The ECMP provides for the establishment of a Construction Zone approximately 18.5 m in length on the western side of Ramsgate Avenue. Excavated material will be stockpiled near the excavation area then transported to trucks parked in the Construction Zone by bobcats with the activity concentrated on the southernmost Right of Way between 101 and 109 Ramsgate Avenue. The number of bobcat movements is identified as 60 per day or 8 per hour Vehicle activity will be limited to between 9 a.m. and 4 p.m. Monday to Friday to minimise conflicts with resident’s vehicles within the Right of Way.

45 The Construction Traffic Schedule identifies

a total demolition time of 42 days of which construction traffic activity associated with the demolition will be concentrated over 30 days, and
a total excavation time of originally 57 days but now reduced (see par 47) of which construction traffic associated with the excavation will be concentrated originally over 29 days, but now 19 days.

46 The proposed development originally provided for the excavation of around 580 cu m of sandstone to provide the area for the four space car stacker and plant, such as the geothermal unit, pool pump and filter, hot water unit, compressor unit, booster pump, sewer pump, electrical switchboard and rainwater tank.

47 At the request of the Court, the applicant was asked to consider whether the 580 cu m of excavation could be reduced through the rationalisation of the space in the basement area. The applicant responded through an amended basement design (Exhibit M) that maintained the four space car stacker and plant but reconfigured the layout to provide a reduced excavation volume of 370 cu m (or a reduction of 37%).

48 The effect is to reduce the number of days for excavation and the days that bobcats will transfer material from the stockpile to the Construction Zone.

Does the geology create any barriers for the proposed development?
Pell evidence

49 Dr Pell’s report states that the geology of the site is typical of the Hawkesbury Sandstone formation and that many deep, vertically sided excavations have been made in this formation with little or no support. Defects, such as joints and bedding planes, in this formation are particularly well understood by virtue of the extensive outcrops around the area, the bore holes drilled by Douglas Partners and the extensive underground excavations for the Bondi Treatment Works. Dr Pell states that the only special or unusual geological conditions in the area are located at the golf course about 0.5 km from the site.

50 Dr Pell states that the proposed excavation does not present design and construction issues any different from the numerous such excavations made in Hawkesbury Sandstone in the residential areas of Sydney. The excavation is not particularly deep and is relatively small in terms of volume. Typically, the major issue with basement excavations is the lateral, inward, movements of the excavation faces because of redistribution of relatively high, locked in horizontal stresses in the sandstone. Dr Pell notes that these lateral movements are addressed in the Douglas Partners report.

51 Having reviewed the construction techniques, Dr Pell concludes that the proposed excavation is not technically inappropriate or unreasonable.

52 Dr Pell was not cross-examined on his evidence and his conclusions remain unchallenged. On this basis, I accept there is no fundamental reason why the geology of the area would create any barriers for the excavation for the proposed development.

Noise
Cooper evidence

53 The council provided no acoustical evidence however cross-examined Mr Cooper on his evidence. Mr Cooper notes that the council staff sought to impose condition 45 that sets a noise limit of 10 dB(A) above background when assessed at any sensitive noise receiver. This accords with the general criteria issued by the Department of Environment Climate Change and Water (DECCW) in their Interim Construction Noise Guideline (the Guideline) for residential receivers at which there may be some community reaction to noise. The Guidelines recommends standard hours for normal construction as 7 a.m. to 6 p.m. Monday to Friday and 8 a.m. to 1 p.m. on Saturdays.

54 Mr Cooper states that in the absence of identification of the existing ambient noise levels, the practicality or feasibility of imposing such a limit has not been properly considered by the council for the site and the residential receivers. In his opinion, the Guideline recommendation is very rarely achieved and that strict enforcement of the +10 dB(A) limit would automatically close or prohibit the majority of demolition, excavation or construction activities in Sydney

55 From his limited assessment of the existing acoustic environment, Mr Cooper states that this environment is controlled by the surf and wave noise on the ocean side of the building. The noise is attenuated by shielding by the subject and adjoining residential buildings to the side and the elevation on the Right of Way. The acoustic environment at the opposite end of the building (adjoining the Right of Way) is controlled by noise associated with vehicles and persons utilising or gaining access to the subject building and the adjacent residential buildings.

56 Mr Cooper conducted measurements in a number of locations and found that the ambient background levels near the ocean side of the building was 59/60 dB(A) and for the area adjoining the Right of Way, the level was 49/50 dB(A.) In using the design target of background +10 dB(A), this would suggest a design target of 70 dB(A) on the side boundaries and 60 dB(A)at the rear ocean side boundary. This approach however would only be relevant at the commencement of demolition works because as the existing building is progressively demolished, the background levels would increase because of the loss of the shielding effect of the existing building.

57 Taking this into account, Mr Cooper adopts a nominal design target of 62 dB(A) at the front and sides of the building and between 58 dB(A) and 61 dB(A) at the rear ocean side boundary. A consequent limit for demolition, excavation and construction noise at the side boundary would be between 68 dB(A) and 72 dB(A), based on council’s suggested condition of background +10 dB(A). In his opinion, and without the provision of enclosed demolition/excavation machinery, the resultant noise target will be exceeded as a consequence of the close proximity to the adjoining residential boundaries.

58 Mr Cooper notes that the Guideline provides recommended standard hours for construction work as 7 a.m. to 6 p.m. Monday to Friday, 8 a.m. to 1 p.m. Saturday with no work on Sundays or public holidays (Table 1). He states that while this document adopts a background +10 dB(A) criterion, it also nominates, for a highly affected area, a limit of 75 dB(A) (Table 2). Where noise is above 75 dB(A), the consent authority may require respite periods by restricting the hours that the very noisy activities can occur by taking into account, firstly times that are less sensitive to noise, and secondly, a longer period of construction in exchange for restrictions on construction times.

59 Mr Cooper states that an information sheet provided by DECCW in relation to the Guideline states that the criteria in Table 2 are not mandatory but aims to inform the selection and application of work practices to minimise noise impacts. The Guideline recommends consideration of feasible and practical measures to minimise noise at the source and indicates mechanisms to use quieter equipment, enclosures and acoustic barriers as the first approach for noise control. Having considered the practical and feasible aspects of such control, the next step is to look to other measures to minimise the impact by reducing the time of noisy activities in consultation with the regulatory authority and adjacent neighbours.

60 When considering the proposed development, Mr Cooper’s opinion is that if concrete saws and jaw crushers are used instead of rock breakers, general compliance with the highly noise affected target of 75 dB(A) in the Guideline should be achieved. For excavation work, and in consideration of the Guideline, Mr Cooper notes that it is proposed that noisy activities would be restricted to between 9 a.m. and 4 p.m. Monday to Friday to lessen the impact, as well as the use of low noise bobcats. To further minimise noise, it is proposed that the bins used for the removal of material be located at street level in the Construction Zone and that large trucks associated with the removal of material not enter the site. All of these measures go to the practical consideration of minimising the noise impact. Mr Cooper suggests that the Environmental Management Plan (EMP) needs to consider noise associated with excavation works and other solutions that may be implemented to further reduce the impact.

61 Mr Cooper suggested amendments to condition 45, including conditions 45(c)(i) that states:

(i) the noise levels from the site works shall be monitored continuously at the boundary of 97, 101 and 107 throughout the period of Site Works with a visual flashing light alarmed set to trigger at 75 dB(A) Leq (15 min).

62 I understood that Mr Cooper was satisfied that the amended conditions satisfactorily address any noise issue when combined with condition 45(c)(ii) that states:

(ii) If the noise level from the Site Works exceeds the Maximum Noise Limit then stop the work that is the cause of the exceedance immediately.

Does noise associated with the demolition/ excavation phase warrant the refusal of the application?

63 The Guideline was the principle document relied upon in the assessment of the impact of noise associated with the demolition and excavation activities. At pt 1.1, the Guideline states that:

…. the Guideline has been developed to focus on applying a range of work practices most suited to minimise construction noise impacts, rather than focusing only on achieving numeric noise levels. While some noise from construction sites is inevitable, the aim of the Guideline is to protect the majority of residences and other sensitive land uses from noise pollution most of the time.

64 At pt 1.2, the Guideline states:

The Guidelines is specifically aimed at managing noise from construction works regulated by DECC, and will be used to assist DECC in setting statutory conditions in licences or other regulatory environments…..

The local council is the appropriate readily authority for noise for non- scheduled construction activities in its area, except as described in section 6(2) of the POEO Act, and thus has discretion in dealing with noise. Some local councils have their own policy (for example, City of Sydney) whereas other local councils that do not have the resources to develop their own policy often seek guidance from DECC. The Guideline may be of assistance to local councils in guiding the decision-making.

65 As Mr Cooper states, the Guideline does not provide a maximum noise level. This is consistent with the approach in the Guideline to minimise construction noise impacts rather than focusing only on achieving numeric noise levels. The Guideline, at Table 2, recommends standard hours from 7 a.m. to 6 p.m. Monday to Friday and 8 a.m. to 1 p.m. on Saturdays. For a highly affected noise environment, the Guideline does not prohibit construction above this level but states that the relevant consent authority "may require respite periods by restricting the hours at the very noisy activities can occur…."

66 Mr Cooper was cross-examined on the potential noise generated at the demolition and excavation stage, and stated that 75 db(A) would be complied with in the majority of activities although he could not confirm that all activities would satisfy this limit. He indicated that the highest level likely to be generated would be 102 db(A) for the bobcats operating at maximum load transporting excavated material to the Construction Zone on Ramsgate Avenue. The machinery used for the excavation would be restricted through the need to satisfy the vibration criterion and, in his opinion, excavation equipment such as saws would be around 107 db(A) and crushers would be less than 102 db(A) however excavation machinery noise would likely be shielded by the actual excavation cut, depending on the location of the machinery.

67 On the matter of demolition and excavation noise issue, I agree with the general conclusions of Mr Cooper. Mr Brockwell is correct in his submission that it would be a rare situation if the construction phase of the development created such unacceptable impacts that it, in itself, would be a sufficient reason to refuse the application. Mr Brockwell urged the Court to reject the application because, in his submission, this was just such a rare occasion, given the close proximity to other residential flat buildings.

68 I am however not satisfied that this is necessarily reasonable in the circumstances. The fact that some parts of the demolition and excavation may exceed 75 db(A) is not a reason to refuse the application based on the Guidelines for a number of reasons. First, and importantly, the Guideline does not specify a maximum noise level. Second, the application addresses the Guidelines by providing respite periods by reduced operating hours of 9 a.m. and 4 p.m. Monday to Friday with no work on Saturdays (compared to the recommended standard hours of 7 a.m. to 6 p.m. Monday to Friday and 8 a.m. to 1 p.m. on Saturdays). Third, the time for traffic activity that may impact on residential amenity associated with demolition will be concentrated over 30 days and excavation over 16 days is not excessive, in the circumstances. Fourth, the amount of excavation has been significantly reduced through the Exhibit M plans with a consequent reduction in time for excavation and the movement of excavated material. Fifth, the condition suggested by Mr Cooper that any works exceeding 75 db(A) should cease immediately if this limit is breached provides supports for the approval but should not be the sole means of minimising noise.

69 While there will undoubtedly be inconvenience and some disruption to the other residents in the area, I am satisfied that reasonable attempts have been made to minimise this inconvenience and disruption, although I do not accept that all opportunities to minimise noise impact had been fully explored. Mr Cooper suggests that the EMP needs to consider noise associated with excavation works and other solutions that may be implemented to further reduce noise impact. I agree. While the condition suggested by Mr Cooper would be helpful when monitoring noise from the site, I do not accept that it should be used as a substitute for the adoption of good management practices that would minimise noise from the site. There is no reason why the proposed condition and good management practices could not operate concurrently.

70 While Mr Cooper helpfully provided evidence on different scenarios put to him by Mr Brockwell over matters such as the noise generated by the bobcats, the excavation machinery and noise attenuation over certain distances, his responses were general in nature because of the absence of details on the specific types of machinery to be used. For this reason alone, further information should be provided within the EMP on the machinery proposed to be used for the excavation and the bobcats, both of which may potentially exceed 75 db(A), on the evidence of Mr Cooper. It may be that if a certain type of machine, such as the excavation saws, are to be used and produces excessive noise then the EMP may specify that machine may operate only at certain times or in certain locations.

71 In my view, it would not be unreasonable for this to be detailed in the EMP, particularly given the more complicated form of excavation created by the Exhibit M plans. In accepting the overall approach of Mr Cooper's evidence, the additional information should be provided through an additional deferred commencement condition of consent that states:

(b) The Applicant’s Enhanced Construction Management Plan Issue 4 be amended to include in Pt 3.10, the plant and machinery to be used in the excavation phase and the bobcats used to transport material to the Construction Zone. An assessment of the likely noise generated by the plant and bobcats at the nearest residential receiver is to be provided and if necessary, the Enhanced Construction Management Plan Issue 4 addressing the proposed excavation and transport of material by bobcat amended to minimise noise impacts on adjoining residential development .

Vibration

72 There was general agreement on the relevant standards for vibration although some disagreement on the form of condition 46 dealing with both construction noise and vibration levels. The areas of disagreement are discussed later in the judgement under the heading of Conditions.

Vehicle movements/ access

73 Mr Coady prepared the CTMP and provided oral evidence at the hearing. The CTMP (and ECMP) provides a range of requirements to minimise the impact of the development on the occupants of the adjoining residential flat buildings. Given the location of the site, the multiple and the reciprocal rights over the numerous Rights of Ways that service the group of buildings, there is likely to be instances where existing residents are inconvenienced because of the redevelopment.

74 In my view, the appropriate test is not whether residents are inconvenienced but whether any inconveniences are minimised. It would be unrealistic to expect that with any major redevelopment of any site there would be no impacts. This site clearly poses greater constraints than most sites because of the complicated access arrangements and proximity of other buildings. In this case, the positive parts of the CTMP are:

construction vehicular activity is concentrated on the primary Right of Way (that forms part of the site area and the Right of Way in favour of the site),
the employment of traffic controllers to supervise the on-site movement of construction vehicles and co-ordinate private vehicular access,
the use of the Construction Zone on Ramsgate Avenue for larger construction vehicles, and the coordination by the supervising on-site traffic controller,
limitations on the construction vehicles using the Rights of Way,
disruptions to vehicular and pedestrian movements along with the Rights of Way are to be minimised, and
notification to residents of any potential disruptions to access.

75 While many residents expressed concern that their access would be restricted because of the construction, the CTMP identifies certain instances when this may occur however it would be for only a relatively short period of time. I did not understand there to be any issue with the legality of the proposed access arrangements for the site based on the extent of the actual site to Ramsgate Avenue and Rights of Way in favour of the site.

Resident contentions
Impacts on aboriginal heritage and artworks

76 The applicant provided an Aboriginal Archaeological and Cultural Heritage Assessment Report that concludes that the proposed development is unlikely to have an adverse impact upon the aboriginal archaeological and cultural heritage values of the place and no obvious heritage constraints to the proposal proceeding, subject to the implementation of management recommendations in the report.

77 I did not understand the applicant to oppose the management recommendations and in the absence of any expert evidence to refute the conclusions of this report, I am satisfied that this contention would not warrant the refusal of the application

78 Dust created during the demolition, excavation and construction phases was raised by number of residents on-site but is not a matter addressed in the ECMP. As the ECMP needs to be amended to address the additional noise requirements, I accept that further amendments should be provided to address the means by which dust generated from the development will be minimised on adjoining residential properties (even though the absence of the measures to minimise dust impacts would not be a matter that would justify a refusal). This can be done by way of an additional deferred commencement condition that states:

(c)

The Applicant’s Enhanced Construction Management Plan Issue 4 be amended to include the measures by which dust generated from the demolition, excavation and construction phases of the proposed development will be minimised on adjoining residential properties.

Privacy impacts/ view loss

79 The potential loss of privacy and loss of views occurs at the pool level of the proposed development and the adjoining property at 97 Ramsgate Avenue. The applicant proposes sliding screens along most of the northern boundary with the adjoining property to provide privacy between the pool area on the proposed development and the patio of the adjoining property. The screens have the effect of restricting views in a south-west direction to the ocean, although the views towards Bondi Beach are unaffected.

80 Based on the site inspection, if the screens were restricted in length along the northern boundary to the alignment of the new building then there is a reasonable balance between the competing needs of privacy and view loss (see condition 3(h)). I did not understand the reduction in the length of the sliding screens to be opposed by the applicant.

Conditions

81 The following conditions are in dispute:

Condition 2(f)

82 This condition requires that "development must be carried out in accordance with" with the report on Geotechnical Investigation prepared by Jeffrey and Katauskas Pty Ltd received by council on 11 June 2010. The applicant opposes that part of the condition that requires the development be carried out "in accordance with". The applicant proposes that the condition should read that the development must be carried out "having regard to" the same report.

83 I agree with the applicant’s version on this condition as it provides some flexibility in future design but still having regard to the Geotechnical Investigation prepared by Jeffrey and Katauskas Pty Ltd received by council on 11 June, 2010.

Condition 19

84 This condition specifies, in part, that contiguous piles are to be constructed along the perimeter of the area to be excavated and that no consent is granted for the use of rock anchors other than on the excavation parallel to the eastern boundary. The applicant opposes this part of condition 19 on the basis that the requirement for the contiguous piles is unreasonable and not supported by the evidence.

85 I agree with the applicant’s submission on this condition as the undisputed part of condition 19 requires a report detailing the proposed methods of bulk excavation, shoring or pile construction. The council's condition pre-empts the findings of the report and is not consistent with the unchallenged evidence of Dr Pell. The use of rock anchors beyond those on the eastern boundary is not contemplated by the proposed development and in the event that they are found to be necessary, owner’s consent will be required. This is a matter that would need to be addressed by the applicant.

Condition 43

86 This condition relates to the storage of materials or other items associated development. The council includes a requirement that no materials are to be stored on the Right of Way outside the site. The applicant opposes a restriction on the basis that storage of materials can occur, providing it does not interfere with the use of the Rights of Way.

87 On this condition I accept the applicants submission. The terms of the Rights of Way were not explained in any detail during the proceedings beyond those persons, the subject of the Rights of Way, to “not unreasonably interfere with the ability to pass and repass". From the evidence, it is unclear whether the limitations imposed by the council condition can reasonably be imposed. Also, the limitations on the Rights of Way are private rights and can be enforced by those persons who have the benefit of the Rights of Way.

Condition 44

88 The condition provides that all activities, that is, demolition, excavation and construction shall be from 9 a.m. to 4 p.m. Mondays to Fridays. The applicant accepts these hours for demolition and excavation however proposes that the condition be amended to allow for construction activities from 7 a.m. to 5 p.m. on Mondays to Fridays and 7 a.m. to 3 p.m. on Sundays with no work on Sundays and public holidays based on the evidence of Mr Cooper.

89 On this condition, I agree with the council. The evidence of Mr Cooper was that the demolition and excavation activities were likely to generate more noise than the construction activities however there has been no acoustical assessment of construction activities. Given the close proximity of adjoining residential flat buildings to the construction site, I am not prepared to allow the hours sought by the applicant without further acoustical assessment. The Guideline is the relevant document and if it was found that the construction noise did not create unacceptable noise impacts to the adjoining residential properties, then the condition could be modified to reflect the findings of the acoustical assessment.

Condition 46(b)(v)

90 This condition relates to an appropriate time to advise a complainant of the steps taken in respect to a noise complaint. The council seeks "no later than 5 p.m. on the day of the event" whereas the applicant seeks "as soon as practicable ".

91 There must be a specified period to advise a complainant of the action taken and it would seem reasonable that a period of 24 hours would be applicable for advice to take given.

Condition 46(e)

92 This condition relates to an event when the alarm is triggered when vibration exceeds the specified criteria. The council requires the site work activity that triggered the alarm shall "cease immediately". The applicant proposes that the activity "be investigated and modified to comply".

93 On this condition, I agree with the council. If an activity triggers the alarm, then the vibration exceeds the specified criteria and could potentially cause damage to adjoining properties. It is appropriate that the site work activity that triggered alarm should "cease immediately”.

Condition 46(l)

94 This condition relates to the qualifications of the acoustic engineer who is required to ensure that the noise and vibration levels comply with the limits stipulated in the conditions of consent.

95 While both the council and the applicant accept that the acoustic engineer must be "suitably qualified" the difference centres on whether the acoustic engineer has, or is eligible for membership of the Australian Acoustical Society and Engineers Australia.

96 I accept the applicant’s submission on this condition.

Condition 46(n)

97 This condition identifies a range of guidelines and standards for the measurement and noise and vibration. There was no dispute over three guidelines and standards, being the NSW Industrial Noise Policy, DEC. Assessing Vibration – A Technical Guideline, Feb 2006 and the Guideline. It is unclear from the council’s conditions or the submissions why the other guidelines and standards are needed given the agreed guidelines and standards, so they can be deleted.

Condition 53

98 This condition relates to noise from mechanical ventilation. The applicant seeks to add the words "as a Leq over 15 minutes" to the condition that is consistent with Mr Cooper's evidence.

99 I accept the applicant’s submission on this condition.

Condition 57

100 This condition addresses the proposed balconies on the building and states that the balconies are not being enclosed or altered. The applicant objects to the words "or altered" on the basis that the expert evidence addresses this issue and the addition of these words is not inconsistent with any of the evidence of any of the witnesses.

101 I am satisfied that the words "or altered" can remain in the condition. Much of the town planning and heritage evidence focused on the visual appearance of the building and the evidence reflected the details of the proposed design. Any change, however minor, would need to be fully assessed against its prominent location in view of Bondi Beach and the Pacific Ocean a and within a heritage conservation area.

102 The orders the Court are:

______________
G T Brown
Commissioner of the Court

ANNEXURE “A”

miller v waverley Council

LEC: 10401/2010

105 Ramsgate Ave Bondi Beach

A. deferred commencement conditionS

1. This Consent does not operate until

(a) The Applicant provides documentary evidence to the Council’s satisfaction, confirming the Applicant’s right to use the Right of Way at the front of No. 97 Ramsgate Avenue, North Bondi, for the purposes of the: demolition; excavation; and construction phases of the development, as set out in the Enhanced Construction Management Plan – Issue 4.

(b) The Applicant’s Enhanced Construction Management Plan Issue 4 is amended to include in Pt 3.10, the plant and machinery to be used in the excavation phase and the bobcats used to transport material to the Construction Zone. An assessment of the likely noise generated by the plant and bobcats at the nearest residential receiver is to be provided and if necessary, the Enhanced Construction Management Plan Issue 4 addressing the proposed excavation and transport of material by bobcat amended to minimise noise impacts on adjoining residential development.

(c) The Applicant’s Enhanced Construction Management Plan Issue 4 is amended to include the measures by which dust generated from the demolition, excavation and construction phases of the proposed development will be minimised on adjoining residential properties.

B. Approved Development

2. Approved Development

The development must be carried out in accordance with:

(a) Architectural Plan Nos DA02 – DA09, Issue B, prepared by Architects in Association: Puflett Associates and Brian Myerson Architects Pty Ltd (‘BMA’), dated 29/05/2009, and received by Council on date 2 June 2009;

(b) ‘Floor Plans 1’, issue B-1 prepared by Architects in Association: Pufflett Associates and BMA dated 6 October 2010, made ‘Exhibit M’; insofar as there is any discrepancy between Exhibit M and the plans listed in Condition 2(a) above, Exhibit M is to supersede those plans;

(d) Schedule of external finishes and colours received by Council on 8 January 2009; and

(e) The Site Waste and Recycling Management Plan (SWRMP) and Checklist;

(f) The Applicant’s Enhanced Construction Management Plan Revision 4 prepared by SDH & Associates and others (‘ECMP #4’) dated September 2010;as amended by Part A of this consent.

The development must be carried out having regard to

(g) Report on Geotechnical Investigation prepared by Jeffery and Katauskas Pty Ltd received by Council on 11 June, 2010;

except where amended by the following conditions of consent.

3. general modifications

The proposal shall be amended as follows:

(a) The applicant must provide: 2 mobile garbage bins (‘MGB’s’) each with 240 litre capacity for waste; 1 MGB with 240 litre capacity for paper recycling; and 1 MGB with 240 litre capacity for other recycling. Only the recycling bins may be stored within the basement/storage area for transportation by the lift to the ground floor level. All putrescible waste bins must be stored at the ground level for access to the collection point.

(b) Rooflights are to be reduced to not more than 20% of the roof surface area to comply with the Building Code of Australia. The rooflight shall be designed to be ventilated to reduce heat build-up to the upper level unit.

(c) The window openings in external walls are to be provided with spandrel separation to comply with the Building Code of Australia.

(d) On the northern elevation “Ground Level”, the slot window to the living room (second from the eastern elevation) is to be obscure glazed as it is a secondary window and overlooks a window on the adjoining property.

(e) All side windows on Levels 1 and 2 are to be fitted with privacy measures such as obscure glazing or fixed louvers.

(f) All laundry and ensuite windows are to be obscure glazed for user privacy as no outlook is required from these rooms.

(g) The louvres to windows indicated on the plans are to be fixed in place and angled to ensure that there is no overlooking of adjoining windows or balconies.

(h) The screens at the pool level on the northern boundary are to be restricted in length and are to finish at the alignment of the new building

Plans depicting the amendments, required by this condition shall be submitted for the approval of Council prior to the issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979.

4. coastal engineering report

The recommendations of the Coastal Engineering Report by Worley Parsons dated 2 November 2009 shall be implemented.

5. RESTRICTION AS TO USER

A restriction as to user must be registered in accordance with section 88E of the Conveyancing Act 1919 on the title of Part Lot 14 Section 5 DP 786.

The restriction as to user restricts the use of the proposed Apartment 1 as a dwelling, unless the owner of Apartment 1 from time to time, has acknowledged in writing to the Council, receipt of a copy of the commissioned reports by Worley Parsons dated 2 November 2009 and 22 June 2010. Both Worley Parsons reports are to be annexed to the section 88E Instrument.

The terms of the restriction as to user are to be approved by Council in writing prior to registration. The Council shall be the party who has the right to modify or extinguish the restriction, prior to the issue of an occupation certificate.

6. ABORIGINAL HERITAGE REPORT

The recommendations of the Aboriginal Archaeological and Cultural Heritage Assessment prepared by Dominic Steele Consulting Archaeology dated September 2009 shall be implemented during construction. In this regard, the following will apply during construction:

(a) The Applicant or other person carrying out the approved development in reliance upon this Consent shall make arrangements for the La Perouse Local Aboriginal Land Council (LPLALC) to monitor Site works which may involve the disturbance of Aboriginal archaeological features or deposits.

(b) LPLALC must make an inspection of the Site when the demolition of the existing building has reached the level overlying the sandstone bedrock, in order to determine the presence of traces of engravings.

(c) If it is the case that traces of engraving exist on the surface of the bedrock, the Applicant or other person carrying out the approved development in reliance upon this Consent shall implement appropriate management procedures in consultation with the LPLALC.

(d) If Aboriginal objects are unearthed as a result of the works in the future, all activities on the Site shall cease and the Department of Environment and Climate Change and Water (DECCW) shall be contacted to advise on the appropriate course of action to allow the LPLALC to record the identified item(s).

7. APPROVED DESIGN - RESIDENTIAL FLAT DEVELOPMENT

The approved design (including an element or detail of that design) or materials, finish or colours of the building must not be changed so as to affect the internal layout or external appearance of the building, without the approval of Council.

8. architect to supervise design

The preparation of the Construction Certificate plans shall be supervised by Puflett Associates Architects (the 'architect' Registration Number: 5376) or Brian Meyerson Architects Pty Ltd (the 'architect' Registration Number: 4907) in accordance with the requirements of State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Buildings. A design verification statement shall be provided in accordance with clause 143A of the Environmental Planning & Assessment Regulation 2000.

9. TELECOMMUNICATION FACILITIES ON MULTI-UNIT DWELLINGS

The erection of telecommunication facilities on the approved development is not authorised by this Consent. The Owners' Corporation is prohibited from entering into leasing agreements with telecommunication companies to erect or install any commercial telecommunication device (other than for the explicit use of the occupants) on the building.

10. EXCAVATION TO BE LIMITED

Excavation of the Site shall be limited to that shown in the approved plans.

11. USE OF COMMON PROPERTY

No exclusive use of common property (other than for approved storage) shall occur without the prior consent of Council. In this regard the applicant is to register a restriction as to user that prohibits the separate occupation, use or disposition of the common property by way of agreement, instrument or dealing including and agreement, instrument or dealing.. The restriction as to user is to be registered prior to the issue of the Occupation Certificate.

12. ENCROACH BEYOND THE BOUNDARIES

No portion of the proposed works, including landscaping and the footings and roof eaves are to encroach beyond the boundaries of the subject property, without the written consent of all affected property owners.

C. Compliance Prior to Issue of Construction Certificate

13. SECTION 94A CONTRIBUTION

A cash contribution is payable to Waverley Council pursuant to section 94A of the Environmental Planning and Assessment Act 1979 and Waverley Council Development Contributions Plan 2006 in accordance with the following:

(a) A cost report indicating the itemised cost of the development shall be completed and submitted to council:

(1) Where the total development cost is less than $500,000:
"Waverley Council Cost Summary Report"; or,

(2) Where the total development cost is $500,000 or more:
"Waverley Council Registered Quantity Surveyor's Detailed Cost Report".
A copy of the required format for the cost reports may be obtained from Waverley Council Customer Service Centre or downloaded from:

(b) Prior to the issue of the Construction Certificate, evidence must be provided that the levy has been paid to Council in accordance with this condition or that the cost of works is less than $100,000.

(c) Should a section 96 modification result in any change to the total cost of the work, the Section 94A contribution is to be revised and amended. Prior to the issue of the Construction Certificate, evidence must be provided that the revised levy has been paid to Council in accordance with this condition.

Waverley Council Development Contributions Plans 2006 may be inspected at Waverley Council Customer Service Centre.

Advisory Note

A development valued at $100,000 or less will be exempt from the levy.

A development valued at $100,001 - $200,000 will attract a levy of 0.5%.

A development valued at $200,001 or more will attract a levy of 1% based on the full cost of the development.

14. security deposit

A deposit or guarantee satisfactory to Council for the amount of $10,000 must be provided as security for the payment of the cost of making good any damage that may be caused to any Council property as a consequence of this building work.

This deposit or guarantee must be established prior to the issue of a Construction Certificate. The full amount of the difference after recovery of Council's cost for any repair of damage to Council property will be refunded after satisfactory completion of the building work to the person who paid the deposit.

15. long service levy

A long service levy, as required under Section 34 of the Building and Construction Industry Long Service Payments Act, 1986, is to be paid in respect to this building work. In this regard, proof that the levy has been paid is to be submitted to Council prior to the issue of a Construction Certificate.

Note: Council acts as an agent for the Long Service Payment Corporation and the levy may be paid at Council's office. The levy rate is 0.35% of building work costing $25,000 or more.

16. NO BUILDING WORKS PRIOR TO RELEASE OF CONSTRUCTION CERTIFICATE

No building work or demolition work may be carried out until:

(a) a Construction Certificate has been obtained from Council or an Accredited Certifier in accordance with Section 81A(2) of the Environmental Planning & Assessment Act, 1979; and

(b) a Principal Certifying Authority has been appointed and Council has been notified of appointment in accordance with Section 81(A)(2)(b) of the Environmental Planning & Assessment Act, 1979 and Form 7 of Schedule 1 of the Regulations; and

The owner/applicant may make application to Council or an Accredited Certifier for the issue of a Construction Certificate and to be the Principle Certifying Authority.

17. essential services - new building

Details of the proposed essential fire safety measures/services shall be submitted to Council with the application for a Construction Certificate or be attached to the Construction Certificate, and include a certificate, prepared by a person competent to do so, setting out the:

(a) basis of design;

(b) standard to which the system is to be installed; and

(c) all relevant documentation, including all drawings such as wiring diagrams, duct layouts, hydraulic schematics etc and calculations shall be submitted for Council's records.

At the completion of the installation, certification containing the following information shall be attached to the application for an Occupation Certificate or to the Occupation Certificate:

(a) inspection, testing and commissioning details;

(b) date of inspection, testing and commissioning;

(d) a statement that the service has been designed, installed and is capable of operating to the above standard.

18. alternative solution

(a) In accordance with Clause 144 of the Environmental Planning and Assessment Regulations 2000 where building work involves an alternative solution to meet the performance requirements of the Building Code of Australia contained in any one or more of the Category 2 fire safety provisions as defined under the Environmental Planning and Assessment Regulations 2000 the application for a Construction Certificate must be referred to the Commissioner NSW Fire Brigades in order to obtain an initial fire safety report prior to issue of the Construction Certificate.

(b) In accordance with Clause 144A of the Environmental Planning and Assessment Regulations 2000 where building work involves an alternative solution under the Building Code of Australia in respect of a fire safety requirement, a Compliance Certificate or written report is required to be obtained from a C10 Accredited Fire Safety Engineer certifying that the alternative solution complies with the relevant performance requirements of the Building Code of Australia prior to the issue of a Construction Certificate.

(c) In accordance with Clause 153A of the Environmental Planning and Assessment Regulations 2000 a Compliance Certificate or written report is to be obtained from a C10 Accredited Fire Safety Engineer certifying that the building work relating to the alternative solution to the Building Code of Australia has been completed and complies with that alternative solution, prior to issue of an Occupation Certificate.

19. DETAILS OF BULK EXCAVATION, SHORING OR PILE CONSTRUCTION

A report shall be prepared by a suitably qualified and practising Structural Engineer detailing the proposed methods of bulk excavation, shoring or pile construction, including details of vibration emissions and any possible damage which may occur to adjoining or nearby properties as a result of the proposed building and excavation works. See condition 2(g).The intended mechanisms for vibration monitoring and control should also be specified. The Report shall be submitted to the Principal Certifying Authority, Council and the owners of adjoining properties prior to the issue of a Construction Certificate.

Any practices or procedures specified in the Structural Engineer's report in relation to the avoidance or minimisation of structural damage to adjoining properties are to be fully complied with and incorporated into the plans and specifications together with the Construction Certificate.

20. SITE WASTE AND RECYCLING MANAGEMENT PLAN

A Site Waste and Recycling Management Plan (SWRMP) Checklist 2 shall be submitted to the Principal Certifying Authority for approval in accordance with Part G1, Waverley DCP 2006 prior to the issue of the Construction Certificate. In this regard, Council expects demolition and excavated material to be reused and/or recycled wherever possible.

The Applicant or other person carrying out the approved development in reliance upon this Consent, shall ensure that the builder and all subcontractors comply with the approved SWRMP Part 1 and 2 at all times during construction. At least one copy of the SWRMP is to be available on Site at all times during construction. Copies of demolition and construction waste dockets that verify the facility that received the material for recycling or disposal and the quantity of waste received, must be retained on Site at all times during construction.

21. EROSION, SEDIMENT AND POLLUTION CONTROL

Erosion, sediment and pollution control measures are to be implemented on this Site. These measures are to be in accordance with Council's Stormwater Policy and are to be implemented prior to commencement of any work or activities on or around the Site. Details of these measures are to be submitted to the Principal Certifying Authority prior to the issuing of a Construction Certificate.

22. STORMWATER MANAGEMENT

Certification is to be provided from a suitably qualified professional, that the stormwater system has been designed in accordance with the Water Management Technical Guidelines.

23. stormwater discharge

Approval for Stormwater discharge directly into open water must be obtained from The Department of Water and Energy. Evidence of this approval shall be provided to the Principal Certifying Authority prior to the issue of a Construction Certificate.

24. ENGINEERING DETAILS

Structural details prepared and certified by a practicing Structural Engineer being furnished to Council or Accredited Certifier in connection with all structural components prior to the issue of a Construction Certificate.

25. ROOFWATER GUTTERING

All new or replacement roof guttering is to comply with the requirements of the Building Code of Australia and Australian Standard AS 3500 Plumbing & Drainage Standards to ensure that collected roof water does not flow back into the building.

26. BASIX

The commitments in the BASIX Certificate shall be included in the Construction Certificate plans and documentation prior to the issue of the Construction Certificate. If required, a modified BASIX Certificate shall be provided that reflects the development as approved (eg addressing any modification required via conditions of consent). Any significant works (ie any works not able to be considered as Exempt and Complying Development) that result from changes to the BASIX Certificate or conflict with conditions of consent require Council's consent.

The Principal Certifying Authority must ensure that all the commitments are satisfied prior to the issue of an Occupation Certificate.

The above condition is a prescribed condition under the Environmental Planning and Assessment Act Regulations clause 97A and the above BASIX commitments are mandatory and can not be modified under Section 96 of the Environmental Planning and Assessment Act 1979.

27. USE OF RENEWABLE TIMBERS

Council requires, wherever possible, the use of renewable timbers and/or plantation timbers such as Radiata Pine or Oregon as an alternative to the use of non-renewable rainforest timber products in buildings to protect existing areas of rainforest.

In this regard, a schedule of proposed timber products to be used in the building is to be submitted for approval by the Principal Certifying Authority prior to the issue of the Construction Certificate. Where the applicant is to use timbers not recommended in Council's Policy, reasons are to be given why the alternative timbers recommended cannot be used.

D. Compliance Prior to and During Construction

28. PRIOR TO SITE WORKS

The Principal Certifying Authority must be informed in writing before any Site works, building work or demolition work commences of:

(a) the name and contractor licence number of the licensee who has contracted to do, or intends to do, work ; or

(b) the name and permit number of the owner/builder who intends to do the work; and

29. home building act

The builder or person who carries out the residential building work shall comply with the applicable requirements of Part 6 of the Home Building Act, 1989. In this regard a person must not contract to do any residential building work unless a contract of insurance that complies with this Act is in force in relation to the proposed work. It is the responsibility of the builder or person who is to do the work to satisfy the Principal Certifying Authority that they have complied with the applicant requirements of Part 6, before any work commences.

30. CONSTRUCTION SIGNS

Prior to commencement of any excavation, building or demolition works on the Site and during construction, the Applicant or other person carrying out the approved development in reliance upon this Consent shall cause a sign to be erected on the main frontage of the Site detailing the name, address and contact details (including a telephone number) of the Principal Certifying Authority and principal contractor (the coordinator of the building works). The sign shall be clearly legible from the adjoining street/public areas and maintained throughout the building works.

31. EXCAVATION AND BACKFILLING

All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with the appropriate professional standards and must be properly guarded and protected to prevent them from being dangerous to life or property.

32. excavation below footings

If an excavation associated with the erection or demolition of a building extends below the level of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made, at their own expense, must:

(a) preserve and protect the building from damage; and

(b) if necessary, must underpin and support the building in an approved manner; and

(c) must, at least seven days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished.

33. obstruction to public areas

If a public place will be obstructed because of the carrying out of work involved in completing the development authorised by this Consent and a public place is required to be enclosed in connection with the erection or demolition of a building; then:

(a) a hoarding fence must be erected between the building Site and the public place of the proposed building and the public place. If necessary, an awning sufficient to prevent any substance from, or in connection with, the work falling into the public place, is also to be erected;

(b) the work is to be kept lit during the time between sunset and sunrise if the work may be of a sort of danger to persons using the public place; and

34. TOILET FACILITIES

Toilet facilities being provided on the work site in accordance with the requirements of Sydney Water.

35. NO USE OF ORGANOCHLORIN PESTICIDES

The use of organochlorin pesticides as termite barriers in new development is prohibited. Only physical barriers are to be used for termite control. The building shall comply with Australian Standard 3660: Protection of building from subterranean termites - prevention, detection and treatment of infestation.

36. DILAPIDATION REPORT

A dilapidation report prepared by a practising Structural Engineer shall be submitted to the Principal Certifying Authority, Council and the owners of the adjoining properties listed below prior to the commencement of demolition, bulk excavation or building works, detailing the current condition and the status of all buildings (both internal and external together with surrounding paved areas and Right of Ways), including ancillary structures located upon these properties:

No. 97 Ramsgate Avenue;
No. 99 Ramsgate Avenue;
No. 101 Ramsgate Avenue;
No. 107 Ramsgate Avenue; and
No. 109 Ramsgate Avenue.

All dilapidation surveys must include detailed quantitative measurements of all defects including representative photographs. Defects must be described in such a manner that future surveys will be able to clearly determine whether any additional defects have occurred or whether pre-existing defects have changed.

37. DEMOLITION OR ALTERATION OF PRE 1987 BUILDINGS

At least five (5) days prior to the demolition, renovation work or alterations and additions to any building constructed before 1987, the person acting on the consent shall submit a Work Plan prepared in accordance with Australian Standard AS260-2001, Demolition of Structure and a Hazardous Materials Assessment by a person with suitable expertise and experience. The Work Plan and Hazardous Materials Assessment shall:

(a) outline the identification of any hazardous materials, including surfaces coated with lead paint;

(b) confirm that no asbestos products are present on the subject land; or

(c) particularise a method of safely disposing of the asbestos in accordance with the Code of Practice for the Safe Removal of Asbestos NOHSC 2002 (1998);

(d) describe the method of demolition;

(e) describe the precautions to be employed to minimise any dust nuisance; and

(f) describe the disposal methods for hazardous materials.

38. COMPLIANCE WITH WORKCOVER NSW REQUIREMENTS

All Site works must comply with the occupational health and safety requirements of WorkCover NSW.

39. SOIL AND WATER MANAGEMENT PLAN

A Soil and Water Management Plan (also known as an Erosion and Sediment Control Plan) shall be prepared according to SSROC's Soil and Water Management Brochure and the DECCW's Managing Urban Stormwater: Construction Activities. This Plan shall be implemented prior to commencement of any works or activities. All controls in the Plan shall be maintained at all time. A copy of the Soil and Water Management Plan must be kept on Site at all times and made available to Council officers on request.

40. STOCKPILES

Stockpiles of topsoil, sand, aggregate, soil or other material shall not be located on any drainage line or easement, natural watercourse, footpath or roadway and shall be protected with adequate sediment controls.

41. LOCATION OF BUILDING OPERATIONS

Building operations such as brick cutting, washing tools or brushes and mixing mortar are not permitted on public roadways or footpaths or in any locations which could lead to the discharge of materials into the stormwater drainage system.

42. SEDIMENT REMOVAL FROM VEHICLE WHEELS

A vehicle wheel wash, cattle grid, wheel shaker or other appropriate device, shall be installed in accordance with the approved Soil and Water Management Plan for the Site prior to the commencement of any Site works or activities.

43. ALL BUILDING MATERIALS STORED ON SITE

All building materials and any other items associated with the development are to be stored within the confines of the property. No materials are to be stored on Council's footpath, nature strip, or road reserve without prior Council approval.

44. CONSTRUCTION HOURS

Demolition and building and excavation work must only be undertaken between the hours of 9am and 4pm on Mondays to Fridays with no work to be carried out on: Saturdays, Sundays and public holidays.

If extended hours are sought for the building or construction phase, an application to modify this condition may be submitted with an accompanying acoustical report supporting the amended hours.

Noise from construction activities shall comply with the Protection of the Environment Operations (Noise Control) Regulation 2000.

45. USE OF HEAVY EARTH MOVEMENT EQUIPMENT

Excavation works involving the use of heavy earth movement equipment including rock breakers and the like must only be undertaken between the hours of 9am and 4pm on Mondays to Fridays with no such work to be carried out on Saturday, Sunday or a public holiday.

46. CONSTRUCTION NOISE and vibration levels

The following conditions must be adhered to:

Airborne Noise Levels

(a) The LAeq(15min) noise level from the demolition, excavation and construction works (Site Works) shall not exceed: LAeq(15min) 75 (Maximum Noise Limit) when measured at the boundary of any adjacent affected residences.

(b) On the receipt of any noise complaint, the Applicant and the construction contractor shall implement the following measures:

i) The noise level from the Site Works shall be monitored continuously at the boundaries of 97, 101 and 107 throughout the period of the Site Works with a visual flashing light alarm set to trigger at the 75dB(A) LAeq(15min) target.

ii) If the noise level from the Site Works exceeds the Maximum Noise Limit work that is the cause of the exceedence must immediately cease;

iii) Apply all feasible and reasonable work practices to comply with the Maximum Noise Limit;

iv) If, having complied with condition 46(b)(i) to (iii) and ECMP #4, the noise level still exceeds the Maximum Noise Limit then, notwithstanding condition 46(a), provided the Applicant implements all reasonable and necessary measures to comply with condition 46(b)(i), (ii) and (iii), noise in excess of the Maximum Noise Limit may be emitted for no more than 4 hours per day and only between the hours of 9am and 4pm Monday to Friday;
v) The complainant shall be informed within 24 hours of the event of the steps taken by the construction contractor in respect of:

a) the noise levels;
b) the noise limits;
c) the reasonable and feasible steps taken;
d) the Time Limits to be imposed; and
e) the times proposed for the works the subject of the complaint.

Structural Vibration Levels

(c) The peak particle velocity of vibrations produced by the Site Works shall not exceed 5mm/sec (PPV Limit) in any component direction and 7mm/sec vector summation when measured at a point low on the main load-bearing external wall at ground floor level of any adjacent affected building (Structural Vibration Limit).

(d) Throughout the period of Site Works, vibration levels shall be monitored continuously at representative locations in three affected buildings adjacent to the Site being: 97, 101 and 107 Ramsgate Avenue. Such monitoring shall be conducted by using an Instantel vibration monitor or equivalent fitted with a visible flashing light alarm set to trigger at the PPV Limit.

(e) In the event that the alarm referred to in sub-paragraph (d) is triggered, the Site Work activity that triggered the alarm shall cease immediately and alternative methods shall be employed to ensure the PPV Limit is not exceeded.

(f) The Applicant and the construction contractor shall keep a record of all measured vibration recordings and a log of all alarm trigger events together with an explanation of the work responsible for each trigger and the steps taken to reduce vibration levels and shall supply these to Council upon request.

Complaints Hotline

(g) The Applicant and the construction contractor shall supply to the residents of 97, 101 and 107 Ramsgate Avenue and to Council, a telephone number for lodgement of complaints. The telephone number shall be answered promptly by the person responsible for the management of the works on the Site at the time (and not a recorded message)..

(h) A log of telephone complaints shall be maintained by the Applicant and by the construction contractor and supplied to Council on request.

Noise and Vibration Management Plan

(i) Prior to commencement of any Site Works, a noise and vibration management plan shall be prepared incorporating the following information:

i) Noise and Vibration Management Levels: The noise and vibration management levels for damage and occupant comfort stipulated in these conditions of consent.

ii) Description of the Works: A description of the Site Works and how it is proposed to comply with the noise and vibration management levels.

iii) A description of activities that may require a Time Limit pursuant to these conditions of consent and the planning and timing proposed for those activities.
iv) Pre-Use Testing: Prior to the use of any equipment or the carrying out of any process likely to result in noise and vibration levels exceeding the management limits stipulated in these conditions of consent, testing of the equipment or process shall be conducted to establish:

a) the working area within which the noise and vibration management
levels will not be exceeded; and
b) the working area which will require a Time Limit to be observed.

v) Communication Protocol: The Applicant and the construction contractor shall keep residents and Council informed on a weekly basis of the nature and timing of the Site Works including the provision of a Time Limit.

vi) Noise and Vibration Monitoring: Noise and vibration monitoring equipment shall be installed on a permanent basis on the boundary of the Site; or such other location as close to the boundary as is reasonably practical; or within nearest affected locations (provided owners’ consent is given) for the duration of the Site Works.

vii) Measuring Equipment: The type and locations of measuring equipment shall be described.
viii) Reporting: A description of the reports to be produced and interval of reporting.

(j) The noise and vibration management plan shall be updated as necessary and a copy shall be provided to Council for its approval.

(k) Work on Site shall not commence until Council has approved the noise and vibration management plan.

Qualified Persons:

(l) A suitably qualified acoustic engineer must be appointed before commencement of Site Works and details of that appointment submitted to Council. The acoustic engineer shall possess qualifications to render them eligible for membership of the Australian Acoustical Society and Engineers Australia or membership of the Association of Australian Acoustical Consultants.

(m) The acoustic engineer shall make recommendations as necessary to ensure that the noise and vibration levels comply with the limits stipulated in these conditions of consent and the Applicant and the construction contactor shall do all things reasonably necessary to comply with those recommendations.

General:

(n) Noise and vibration measurements shall be made in accordance with the definitions and requirements of the following guidelines and standards:

i) NSW Noise Guide for Local Government and the NSW Industrial Noise Policy issued by DECCW.

ii) DEC Assessing Vibration - A Technical Guideline Feb 2006.

iii) DECCW NSW Interim Construction Noise Guideline July 2009.

iv) Deleted.
v) Deleted.

47. BUILDING CODE OF AUSTRALIA

All building work must be carried out in accordance with the requirements of the Building Code of Australia.

48. FIRE SAFETY UPGRADE REPORT

Fire safety upgrading works are to be undertaken in accordance with Building Code of Australia Assessment Report 2008/860 R1.0, prepared by Steve Watson and Partners and dated July 2009.

49. QUALITY OF CONSTRUCTION ACT - INSPECTIONS (RESIDENTIAL FLAT DEVELOPMENT AND OTHER RESIDENTIAL CLASS 2, 3 AND 4)

The building works are to be inspected during construction by the Principal Certifying Authority (PCA) and in accordance with the Building Legislation (Quality of Construction) Act 2002 and the Environmental Planning and Assessment Regulations. Also, documentary evidence of compliance with the relevant terms of conditions of development consent and standards of construction detailed in the Building Code of Australia are to be obtained prior to proceeding to the subsequent stages of construction and/or issue of an Occupation Certification.

MANDATORY Critical Stage Inspections MUST be carried out by the PCA for work undertaken during specified stages of construction and prior to issuing an Occupation Certificate.

The specified MANDATORY inspections are:

In the case of a Class 2, 3 and 4 building:

(a) at the commencement of the building work;

(b) prior to covering of waterproofing in any wet area for a minimum of 10% of rooms with wet area within a building;

(d) after the building work has been completed and prior to any Occupation Certificate being issued in relation to the building.

In addition to the Mandatory Inspections, the following additional inspections must also be undertaken by the PCA:

(a) sediment control measures prior to the commencement of building work;

(b) foundation material prior to undertaking building work;

(d) steel reinforcement, prior to pouring concrete;

(e) prior to covering timber or steel framework for floors, walls and roofing, including beams and columns;

(f) prior to installation of fire resisting construction systems (ie fire rated ceilings and walls); and

(g) swimming pool fencing prior to filling pool.

Note: Certification may be required from a suitably qualified person, in relation to specialist matters, verifying that particular works satisfy the relevant requirements of the Building Code of Australia and standards of construction.

50. CERTIFICATE OF SURVEY - LEVELS

All construction works shall be strictly in accordance with the Reduced Levels (RLs) as shown on the approved plans. Certification from a Registered Surveyor certifying the level of each floor of the building complies with the approved plans, is to be submitted to the Principal Certifying Authority during construction and prior to proceeding to construct any works above the level of such floor. Certification from a Registered Surveyor certifying the finished ridge levels is to be submitted to the Principal Certifying Authority when construction of the building authorised by this Consent is complete.

51. CERTIFICATE OF SURVEY - BOUNDARIES AND LOCATION OF BUILDING

A Certificate of Survey prepared by a Registered Surveyor setting out the boundaries of the Site and the actual situation of the building on the Site is to be submitted to the Principal Certifying Authority to certify the building is located in accordance with the development consent plans. The Certificate is to be submitted prior to the construction of the external walls above the ground floor level of the building.

52. MECHANICAL VENTILATION SYSTEMS

(a) The premises are to be ventilated in accordance with the requirements of the Building Code of Australia & relevant Australia Standards.

(b) Any proposed mechanical ventilation system shall comply with the Australian Standard AS 1668 - 1991 (Parts 1 and 2). Prior to installation, the design is to be certified by a person competent to do so. At completion of the installation of the system and prior to the issue of the Occupation Certificate, the work shall be certified by a person competent to do so. The certification shall include:

(i) inspection, testing and commissioning details;
(ii) date of inspection, testing and commissioning details;
(iii) the name and address of the individual who carried out the test; and
(iv) a statement that the service has been designed, installed and is capable of operating to the above standard.

53. NOISE FROM MECHANICAL VENTILATION

The noise emanating from the mechanical ventilation and airconditioning systems shall not exceed the ambient background level by more than 5dB(A) when measured or assessed at any residential boundary as a Leq over 15 minutes.

54. WATER PROOFING

The floor and wall surfaces of the proposed wet areas being protected against water in accordance with the Building Code of Australia. The wet areas are to be examined and certified by an Accredited Certifier.

Note: Water proofing is to be in accordance with AS 3740 - Water Proofing of Wet Areas within residential buildings.

55. HOT TAP WATER SCALDING

To reduce the incidence of hot tap water scalding and, for the purpose of energy efficiency, all new or replacement hot water systems shall deliver hot water to a maximum 50 degrees Celsius at the outlet of all sanitary fixtures used for personal hygiene.

56. SMOKE ALARM SYSTEM

A smoke alarm system is to be installed within the building in accordance with the requirements of the Building Code of Australia.

57. RESIDENTIAL FLAT BUILDINGS - BALCONIES NOT TO BE ENCLOSED

The private open balconies attached to the proposed building are not to be enclosed or altered. In this regard, the door openings within the external walls adjoining the private open balconies are to be constructed so as to prevent the penetration of rain or other waters to the inner part of the building.

58. EXCAVATION TO BE MANAGED BY STRUCTURAL ENGINEER

The Applicant must ensure that bulk excavation is managed by a practising structural engineer, in accordance with the specification for shoring and support, as detailed in the approved Construction Certificate.

59. SERVICE PIPES

All plumbing and drainage, including sewerage drainage stacks, ventilation stacks and water service pipes shall be concealed within the building. Plumbing other than stormwater downpipes shall not be attached to the external surfaces of the building.

60. construction management plan

During construction the works shall be carried out in accordance with the ECMP #4 prepared by SDH & Associates and others, dated September 2010 and received by Council’s solicitors on 20 September 2010. The following additional requirements also apply during construction:

(a) Residents of neighbouring properties of 97, 101 and 107 Ramsgate Avenue are to be advised of the construction activity.

(b) Vehicles no larger than single unit tipper truck are to be used for all deliveries to the Site and in Site Works.

(c) Access to neighbouring properties is to be kept clear at all times and no construction vehicles are to park on the nature strip or footpath area.

(d) All traffic control and pedestrian management must be in accordance with the ‘RTA Traffic Control at Work Sites’ manual.

Note:

Should there be a requirement of a construction zone, a separate application is required for the approval and the matter needs to be referred to Waverley Traffic Committee. It usually takes up to eight weeks for the processing of the application.

E. Compliance Prior to Occupation or During Occupation

61. FINAL OCCUPATION CERTIFICATE

No part of the approved development may be occupied until a Final Occupation Certificate has been issued by the Principal Certifying Authority. In issuing an Occupation Certificate, the Principal Certifying Authority must be satisfied that the requirements of Section 109H of the Environmental Planning & Assessment Act, 1979 have been satisfied.

62. POOL SIGN

An approved sign outlining details of resuscitation techniques for adults, children and infants must be placed in a prominent position, close to the pool prior to filling the pool with water. Signs are available from Council's Planning & Environmental Services Department.

63. INSPECTION OF POOL

A final inspection of the completed pool is to be carried out by the Principal Certifying Authority prior to the pool being filled with water.

64. LIGHTING

Any lighting on the Site shall be designed so as not to cause nuisance to other residences in the area or to motorists on nearby roads and such lighting must not result in any adverse impact on the amenity of the surrounding area by light overspill. All lighting shall comply with the Australian Standard AS 4282:1997 Control of the Obtrusive Effects of Outdoor Lighting.

65. STREET NUMBER/S

The street number for the property shall be a minimum of 75mm high and shall be positioned 600mm-1500mm above ground level on the Site boundary that fronts the street. Should the number be fixed to an awning then it shall be a minimum 150mm high.

In this Consent:

‘Applicant’ means the Applicant for development or such other person who may from time to time, be carrying out development in reliance upon this development consent;

‘Site Works’ means the demolition, excavation or building works approved under this development Consent at 105 Ramsgate Avenue.

CITATION:	Miller v Waverley Council [2010] NSWLEC 1309
PARTIES:	APPLICANT Neill Miller RESPONDENT Waverley Council
FILE NUMBER(S):	10401 of 2010
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- demolition of an existing residential flat building and erection of a new residential flat building - non-compliance with planning controls - inappropriate design - heritage impacts - visual impact - demolition, excavation and construction impacts - noise - vibration - construction vehicle movements
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2006 State Environmental Planning Policy No. 65 State Environmental Planning Policy No.71
DATES OF HEARING:	5, 6, 7 October 2010
DATE OF JUDGMENT:	12 November 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr J Robson SC SOLICITORS Morgan Lewis Solicitors RESPONDENT Mr S Brockwell, barrister SOLICITORS Sparke Helmore Lawyers